In mid-November, the Supreme Court heard oral argument in Alabama Legislative Black Conference v. Alabama, a closely watched case that will have the court decide whether Alabama’s legislative maps were an unconstitutional racial gerrymander.
That the case is even at the Supreme Court is surprising to many observers. This is because, after deciding a quick fire series of racial gerrymandering cases starting with Shaw v. Reno in 1993, in which white voters challenged creation of new majority-minority districts, the Supreme Court had seemed to abruptly step away from racial gerrymandering – perhaps sensing that its efforts to decide when majority-minority districts had been drawn too much on the basis of race had resulted in confusing and hard to decipher standards (then-Stanford law professor Pamela Karlin described the Shaw line of cases as “both misguided and incoherent”).
With the Alabama case, however, the Supreme Court faces very different issues of racial gerrymandering.
For starters, unlike earlier cases, the Alabama case is being brought by African-American rather than white voters. More importantly, the case does not challenge the creation of a new district under Section 2 of the Voting Rights Act, but rather Alabama’s policy decision – citing the retrogression standards of Section 5 – to keep the African-American population of districts at or close to the same percentage as before redistricting, even if a district needed to add significant population to comply with the Constitution’s one-person, one-vote requirement. In other words, if a district was 65% African American before redistricting, it needed to be 65% African American afterwards, or very close.
African-American challengers say this packed African-American voters into districts, required radical redrawing of many majority-minority districts, and worse dismantled districts where African Americans, even though not a majority of the population, had begun to build political alliances with white voters.
Moreover, the fixed percentage rule adopted by Alabama was unnecessary they say because in Alabama, as in much of the South, African-Americans have shown the ability to elect candidates of their choice at much lower percentages than used to be necessary. A three-judge panel in Washington, D.C., for example, found that African Americans in Texas had the ability to elect in districts where African Americans make up as little as 39% of a district.
The Alabama case is not an isolated occurrence. Similar racial gerrymandering claims have been made in Virginia and North Carolina (the Virginia case also recently was appealed to the Supreme Court). And, indeed, Loyola law professor Justin Levitt has shown that the policy of requiring that African-American districts be kept at rigid demographic percentages occurred not just in Alabama but was a policy adopted by Republican controlled legislatures from Texas to South Carolina.
Yet, for a case with considerable import and a potentially broad impact, the Supreme Court seemed uncertain at November’s oral argument about where to go. At least four major themes – all asking tough but important questions – emerged at the argument:
How do you analyze a racial gerrymandering claim?
Perhaps the biggest debate of the day took place not between the conservative and liberal justices but between Justice Kagan and her liberal colleagues over whether the claim should be analyzed under the traditional Shaw v. Reno framework on a district by district basis or whether it presented a different – and easier – type of racial gerrymandering case.
In questioning, Justice Kagan suggested that the complexity of earlier racial gerrymandering cases had been due to the need to look for indirect evidence that race had predominated in the drawing of districts (the shape of the district, precinct and boundary splits, and the like). The Alabama case, she suggested, was easier because the state had adopted an express policy of maintaining districts at fixed percentages which made the case a “sui generis Shaw claim,” meaning that “you don’t have to look at all the circumstantial evidence.”
Several of the other liberal justices spent a great deal of the argument, however, asking whether the case should be remanded because the three-judge panel below had not analyzed the two challenged plans on a district by district basis. The thrust of the Justices’ questions suggested in their minds that the African-American percentage of a district was irrelevant if, notwithstanding a statewide policy, it had been possible to draw majority African-American districts that were compact, not oddly shaped, and respected traditional political boundaries. For these justices, the question seemed to be whether the case should be dismissed for failing to state a claim or, alternatively, remanded to allow the district court to review the maps on a district by district basis.
What does Section 5 require?
Not surprisingly, a good part of the argument also focused on what Section 5 of the Voting Rights Act required states to do when it came to avoiding retrogression.
Although the African-American plaintiffs and the Solicitor General told the court that Justice Department guidelines had long made clear that retrogression review did not require keeping districts at a fixed percentage, two of the conservative justices seemed unconvinced that would be the case – at least in practice.
In one exchange, Chief Justice Roberts said that DOJ “would have come down on [Alabama] like a ton of bricks” if the state had “reduced the majority-minority districts in any significant way.” Justice Scalia, likewise, voiced concerns that “the only way to be sure you’re not [retrogressing] is maintaining the . . . same percentage.”
None of the Justices seemed inclined to agree with Alabama’s interpretation of Section 5, but Justice Roberts and Justice Scalia at least appeared open to saying that Alabama had acted appropriately and out of an abundance of caution in drawing the maps the way that it did.
Were the Alabama maps the product of race or politics?
The Justices also delved into the issue of whether the maps would have been permissible if they had been drawn on the basis of politics rather than race.
With increasingly sharp partisan polarization along racial lines in the South, Republican-led states more and more have taken to defending maps on the basis that maps targeted members of a political party rather than a racial or ethnic group.
Justice Kennedy wondered if legislators could purposely spread African-American voters across districts to create Democratic leaning districts, why the opposite could not also be done – as long as it was done for partisan advantage. And if not, then whether that would amount to a “one-way ratchet” where African-American Democratic voters could be used to advantage Democrats but not Republicans.
In response, Solicitor General Donald Verrilli told the court that drawing a map for partisan purposes “would not be a problem” – as long as mapdrawers did not split precincts or other subdivisions along racial lines. Lawyers for the African-American voters, likewise, told the court that partisan gerrymander might be fine but that using “racial targets that don’t have a legitimate justification” would create a constitutional problem.
Were minority voters harmed?
Finally, Justice Sotomayor and Justice Scalia asked whether African American voters had actually been harmed by the maps when no additional Section 2 majority-minority districts could have been drawn and when African-Americans in non-majority districts had not shown an ability to elect their candidate of choice.